Opinion
2014-06-17
Francisco SORIANO, Plaintiff–Appellant, v. ST. MARY'S INDIAN ORTHODOX CHURCH OF ROCKLAND, INC., Defendant–Respondent. [And a Third–Party Action].
Della Mura & Ciacci, LLP, New York (Walter F. Ciacci and Joshua Annenberg of counsel), for appellant. Harris, King & Fodera, New York (Laura Cohen of counsel), for respondent.
Della Mura & Ciacci, LLP, New York (Walter F. Ciacci and Joshua Annenberg of counsel), for appellant. Harris, King & Fodera, New York (Laura Cohen of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, ANDRIAS, MANZANET–DANIELS, KAPNICK, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered December 27, 2012, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1), and granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, plaintiff's motion granted, and defendant's motion denied.
Plaintiff is a glazier with approximately 43 years of experience (24 years in the United States and 19 years in the Dominican Republic). He and three coworkers were sent by his employer to replace cracked glass panels in the skylight of defendant church's steeple. To access the steeple, plaintiff and his coworkers placed a 12 or 14 foot extension ladder belonging to their employer on top of the roof of the church and leaned it up against the steeple. Plaintiff had used the ladder on three prior occasions and found it to be in good condition. As plaintiff climbed the ladder, the bottom kicked out, moving away from the steeple wall. Both the ladder and plaintiff fell approximately 20 feet straight to the roof below, causing plaintiff to sustain injuries.
Plaintiff commenced this action alleging, inter alia, that defendant violated Labor Law § 240(1) by failing to provide him with an adequate ladder and by failing to provide any safety harnesses or belts that would have prevented his fall.
Upon completion of discovery, plaintiff moved for partial summary judgment on the issue of defendant's § 240(1) liability. Defendant moved in a separate motion for summary judgment dismissing the complaint on the grounds that plaintiff's work was not covered by § 240(1) as a matter of law, since at the time of the accident plaintiff was not “altering” or “repairing” the premises, but rather was performing routine maintenance on the building. Defendant's motion was supported only by an attorney affirmation analogizing plaintiff's work to replacing window screens.
In opposition to defendant's motion and in further support of his motion, plaintiff submitted his own affidavit asserting that, based on his many years of experience as a glazier, skylight panels such as the ones he was replacing do not “crack” or “wear out” over time and “could have remained in place without repair or replacement indefinitely” unless some unusual event caused them to crack or break. Plaintiff further asserted that the three cracked panels made the skylight useless, as “water and other elements” could pass through the cracks, causing further damage to the panels as well as the interior of the steeple.
Labor Law § 240(1) provides protection to workers who are exposed to gravity-related risks arising from working at a height without being provided with adequate safety devices ( see e.g. Keenan v. Simon Prop. Group, Inc., 106 A.D.3d 586, 588, 966 N.Y.S.2d 378 [1st Dept.2013] ). The statute is “to be construed as liberally as may be for the accomplishment of the purpose for which it was ... framed” ( Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001] ). All contractors, owners and their agents are required to provide proper protection to persons employed in the repairing or altering of a building who are exposed to elevation related hazards ( id. at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085;see also Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009] ).
A plaintiff moving for partial summary judgment must establish that § 240(1) was violated and that the violation was a proximate cause of his or her injuries ( Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 554, 814 N.Y.S.2d 589, 847 N.E.2d 1162 [2006];Williams v. 520 Madison Partnership, 38 A.D.3d 464, 464–465, 834 N.Y.S.2d 32 [1st Dept.2007] ). “The plaintiff need not demonstrate that the [safety device] was defective or failed to comply with applicable safety regulations,” but only that it “proved inadequate to shield [plaintiff] from harm directly flowing from the application of the force of gravity to an object or person” ( Williams, 38 A.D.3d at 465, 834 N.Y.S.2d 32 [internal quotation marks and emphasis omitted]; see also Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 340, 937 N.Y.S.2d 157, 960 N.E.2d 948 [2011] ). The inexplicable shifting of an unsecured ladder may alone support a § 240(1) claim if a worker is caused to fall due to such shifting ( see e.g. Picano v. Rockefeller Ctr. No., Inc., 68 A.D.3d 425, 889 N.Y.S.2d 579 [1st Dept.2009]; Carchipulla v. 6661 Broadway Partners, LLC, 95 A.D.3d 573, 574, 945 N.Y.S.2d 4 [1st Dept.2012] ). A worker's prima facie entitlement to partial summary judgment on his or her § 240(1) claim may be established by proof that the ladder provided collapsed under the worker while he or she was engaged in an enumerated task ( Carchipulla, 95 A.D.3d at 573–574, 945 N.Y.S.2d 4;Harrison v. V.R.H. Constr. Corp., 72 A.D.3d 547, 547, 901 N.Y.S.2d 590 [1st Dept.2010); Hamill v. Mutual of Am. Inv. Corp., 79 A.D.3d 478, 478, 913 N.Y.S.2d 62 [1st Dept.2010] ).
The crux of this case involves the question of whether plaintiff was involved in repair or maintenance work. “Essentially, routine maintenance for purposes of the statute is work that does not rise to the level of an enumerated term such as repairing or altering” ( Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 882, 768 N.Y.S.2d 178, 800 N.E.2d 351 [2003] ). In distinguishing between what constitutes repair as opposed to routine maintenance, courts will consider such factors as “whether the work in question was occasioned by an isolated event as opposed to a recurring condition” ( Dos Santos v. Consolidated Edison of N.Y., 104 A.D.3d 606, 607, 963 N.Y.S.2d 12 [1st Dept.2013] ); whether the object being replaced was “a worn-out component” in something that was otherwise “operable” ( Gonzalez v. Woodbourne Arboretum, Inc., 100 A.D.3d 694, 697, 954 N.Y.S.2d 113 [2d Dept.2012] ); and whether the device or component that was being fixed or replaced was intended to have a limited life span or to require periodic adjustment or replacement ( Picaro v. New York Convention Ctr. Dev. Corp., 97 A.D.3d 511, 512, 949 N.Y.S.2d 374 [1st Dept.2012] ).
Here, plaintiff described the panes as being constructed of “heavy plate glass” with wire running through them and stated that they simply “do not crack or wear out over time.” Plaintiff showed, without contradiction, that these panes were not being replaced as a result of normal wear and tear, as they were not expected to be regularly replaced. In fact, defendant presented no evidence that the panes ever had to be replaced or repaired from the time the steeple had been built. As an experienced glazier with over 30 years of experience, plaintiff was more than competent to state that the replacement of these panes constituted repair work, and was not routine maintenance.
As plaintiff made out a prima facie case on the issue of liability, and defendant failed to offer evidence that would raise a triable issue of fact, plaintiff's motion should have been granted, and defendant's motion denied.